The Erik Scott Case: Update 7 Reprised

In Update 7, I finally had sufficient experience with the case, knowledge of Metro and sufficient evidence to propose a theory of the case. I did so with some reluctance because only a few months earlier, it would have been hard to imagine that a coverup of the kind obviously taking place in Las Vegas was possible. Too many people in too many agencies would have to be involved and all would have to keep their mouths shut. But as I continued to speak with people and gather evidence, I realized that such corruption was the very nature of Las Vegas and that it had infiltrated all elements of the criminal justice system and other public agencies. What would have been unthinkable a few months earlier was now the only reasonable explanation.

I also wrote about the incredibly abusive, cowardly and unprofessional harassment Samantha Sterner and anyone displaying an Eric Scott memorial ribbon on their vehicles were suffering at the hands of the police. Officers that would participate in such behavior are no different from the vile thugs they arrest.

Now, more than a year after writing this update, I have discovered no reason to change the theory of the case or to alter my opinion of Metro and its related agencies.

Update 6 (The Stately McDaniel Manor Erik Scott archive with all previous articles and updates can be found here) revealed the irregular, arguably illegal behavior of the Clark County Public Administrator’s Office and the Metro Police in searching Erik Scott’s home and taking property from it after he had been shot and killed by Metro officers. That, as well as the most complete theory of what actually happened posited to date, will be revisited and explained shortly. It will be worthwhile to visit Bill Scott’s most recent post on the Erik Scott Memorial site. That post may be found here[circa November, 2011, this post has been removed from the Scott site on the advice of the Scott family attorney as a cautionary measure during preparations for trial].

But first, it may be useful to understand what should happen following an officer involved shooting. It’s not like TV where independent crime investigation units staffed by young, attractive, brilliant technician/cops are housed in state of the art, gleaming glass and steel facilities with only the best and most recent equipment, and where their stunning, microscopic discoveries lead to dramatic confessions during confrontations with suspects.

PROCEDURES–THE REAL DEAL:

There is no situation requiring greater adherence to procedure and more attention to detail than the investigation of an officer involved shooting. Television is correct in a few details: detectives and crime scene investigators tend to be people who are very good at paying attention to the smallest detail. They tend to be meticulous, patient people, people who take their time to be sure that nothing is rushed or overlooked, people who are unable to leave anything unexplained. Police officers tend to be action oriented. They like to deal with situations quickly and correctly, tie them up into a neat package and move on to the next problem. Detectives and crime scene investigators exist, in part, to temper that tendency and to slow things down when necessary.

Generally, the moment an officer involved shooting has occurred, after the officers present have called in the shooting, called for medical help, rendered medical assistance to anyone injured, thoroughly searched and disarmed anyone who poses a potential danger, they must be immediately relieved of any further duties by a first line supervisor (usually a shift sergeant) or higher ranking officer (such as a lieutenant or captain). This is absolutely vital to prevent even the appearance of impropriety and to ensure that the investigation is conducted without the contamination of self-interest. Under no circumstance can an officer involved in a shooting, in even the most minor way, be allowed to participate in the aftermath of and/or the investigation of that shooting. Should this vital step not be taken, it is often an indicator of incompetence, corruption or both.

The next step is for officers directed by that supervisor (and perhaps the supervisor himself) to protect and preserve the crime scene and to obtain medical treatment for anyone who needs it while simultaneously ensuring the minimum contamination of the scene. This means that he tells arriving officers and medical personnel where they can and can’t stand or walk and what they can and can’t touch. Simultaneously, he must use uninvolved officers to establish a secure perimeter around the scene to ensure no inadvertent or intentional contamination.

The supervisor–and other higher ranking officers–must never lose sight of the possibility that the officer or officers involved have made a mistake, a mistake that could constitute a crime. However, by paying strict attention to procedures and the law, he will ensure that due process is rendered to all, all evidence will be preserved and that the evidence will tell the story. The bodies of anyone shot are also evidence, particularly if they die, and officers must accompany them to medical and/or coroner facilities to take any additional potential evidence into custody including such things as bullets removed from their bodies as well as to ensure that the evidence–the bodies–are properly handled and securely stored.

The supervisor must also immediately locate and identify any potential witnesses, and to the greatest degree possible, segregate them to prevent contamination of their statements. He must also locate and identify any other forms of evidence such as video or audio tapes (including from all possible police sources) and immediately secure them, maintaining an unbroken chain of evidence. When this is not done, or when there is any possibility of tampering, it is often an indicator of corruption. Only when the detectives responsible for the case arrive will he relinquish command of the scene, turning it over to them, but first, he’ll brief them on everything known and all that he has done.

As soon as possible, the firearms and spare magazines of all involved officers must be taken into evidence and replacement firearms and magazines given to the officers. This is true even if an officer did not fire a shot. Police officers are issued approved ammunition and given only enough to fill their magazines and weapons. Replacing ammunition from other sources is commonly grounds for severe discipline. Most officers carry two spare magazines. If their magazines have a capacity of 15 rounds, an officer will be issued 46 rounds of ammunition: 15 per magazine and one for the chamber of his weapon. Whenever an officer fires their weapon, every bullet and every expended brass casing must be precisely documented and accounted for, and this includes rounds remaining in an officer’s weapon and magazines. If, for example, three casings are found but five rounds are missing from the officer’s weapon, there is much to be explained and investigated. It is assumed that every officer present fired until it can be proved otherwise. When all of this is not done, it is often an indicator of corruption.

If a related person, vehicle or residence must be searched, most agencies will obtain warrants rather than relying on exceptions to the warrant requirement, verbal consent or signed permission forms. This takes time, but is commonly done to avoid arguments over the admissibility of evidence and to avoid the problem of people who initially gave permission later claiming that they were coerced or were so in shock that the police took advantage of them and they didn’t realize what they were doing. In professional agencies, this is written into procedure. A properly written and obtained warrant essentially eliminates such problems or makes the actions of the police more easily defensible. When this is not done, it is often an indicator of corruption. When crime scene technicians arrive, they are briefed by the detectives and meticulously identify and record each and every item that could possibly be of value as evidence. Not only are items precisely measured and diagrammed in relation to fixed objects that will be unlikely to be moved (or if they are moved, their positions can be reestablished), they are photographed from many angles before they are touched or moved, and when they are touched, they are immediately placed in a proper container and immediately entered into evidence. The person actually touching an item normally fills out a standard evidence form that particularly describes the item, the time it was collected and the place, as well as any number or other identifier assigned by technicians which includes the related case number (all police activities that require a report or the handling of any kind of property are assigned a unique, sequential case number with the current year being the usual prefix number). Similar documents are attached to each container. Each and every person who actually handles any piece of evidence, in or out of its container, must be recorded on the appropriate evidence custody forms which include the date and time, and the amount of time they had the item. Any breaks in this chain of evidence can render the evidence inadmissible in court and jeopardize the case. Samples of all liquids, blood, sperm, saliva, etc. are also taken after they are first recorded. If something absolutely must be moved for purposes of safety, or in the case of someone being rushed to a hospital, medical treatment, their exact position is marked–the infamous chalk outline–and/or photographed before they are moved. When all of this is not done, it is often an indicator of corruption. Entire scenes are commonly guarded and preserved for days until detectives are absolutely sure, through examination of witnesses and other evidence, that nothing has been overlooked or inadvertently left undiscovered. Every technician handling evidence from such crime scenes is likewise meticulous, including medical examiners. In police involved shootings, determining and recording entry and exit wounds, bullet tracks, gunpowder residue (which indicate the distance of objects from the muzzle of a weapon when it was fired), and other related issues is vitally important. Likewise, precise identification of the weapon that fired each recovered bullet is mandatory. The police must be able to tell exactly who fired each bullet, where the ejected casing came to rest, exactly where the shooter stood in relation to targets engaged, exactly what each bullet hit and where it came to rest. All of this must be reproduced in digital recreations. When all of this is not done, it is often an indicator of corruption.

It is here that the title of this update, Competence vs. Coverup, comes into play. Police work is a profession where each individual’s ability and performance are evaluated continually through each working day, not only by supervisors, but by each officer’s peers. Because lives are at stake, every competent, honest officer is careful to cultivate a reputation for competence and integrity. Anything less is not only dangerous, but likely to get them fired. In honest agencies, an officer’s greatest asset is his reputation for integrity. If his word is suspect, he’s essentially useless. Likewise, police agencies go to great lengths to avoid even the appearance of organizational incompetence. The potential consequences, in civil and criminal sanctions, of doing otherwise are real and great. When all of the procedures outlined here, and more, and not done properly, are done poorly or are omitted, it is so either because of incompetence, corruption or a mixture of the two.

This is why the Erik Scott case is so unusual. In many ways, virtually every public agency involved has taken unusual, difficult to understand and explain actions and apparently made fundamental, foolish, careless, inexplicable mistakes, mistakes that call into question their basic competence. Normally, the police and related agencies would regard this state of affairs with justified horror. Normally. The only exception commonly occurs when the potential consequences of appearing and/or being incompetent pale in comparison to the alternative. Only then will police officers and agencies commit and accept gross incompetence rather than admit the truth. Such behavior is always a potential indicator of a coverup. A coverup is always a potential indicator of criminal conspiracy on the part of the police and related authorities.

A THEORY OF THE CASE:

Early in the investigation of any incident, detectives develop a theory of the case. They try to understand exactly how and why it happened as a means of gaining a better picture of who did it and why. In a police involved shooting, identities and motives usually aren’t in question, but they still need to develop a working theory, a theory that they must continually alter and update as new evidence becomes available. If the police stick to a theory that is not supported by the evidence, this too is a potentially strong indicator of incompetence or of a coverup.

Please keep in mind, gentle reader, that I am supportive of the police because I understand through hard won experience exactly how difficult, dangerous and absolutely vital is the job. I reflexively give the police the benefit of the doubt as long as they are acting within the boundaries of the reasonable exercise of their professional authority and discretion. I differ from most citizens in that I know what those boundaries are and what the reasonable exercise of professional discretion is. I also know how and why things go wrong, how agencies become corrupt, gradually, little by little over time, and why that kind of corruption is deadly dangerous, not only for police officers, but for communities and society.

It is therefore difficult to write this current theory of the case, a theory that, like all such theories, may be incorrect in ways small or great. It’s a theory that is certainly liable to change when more and more accurate information becomes available. I do not present it as absolute truth, but as a reasonable, working theory that fits the facts as they are currently known. Also keep in mind that many of the actions and thought processes I ascribe to those involved can and do occur more or less simultaneously, in chaotic fashion, and within scant seconds or minutes of a shooting, therefore it is difficult to determine with certainty if thought A preceded or followed thought B which might or might not have precipitated action C, etc. It’s often difficult or impossible even for those who lived it. Read on; decide for yourself.

THE IDENTIFICATION:

Within mere seconds–as few as two–of recognizing Erik Scott as the man they were seeking, Officers Mosher, Stark and Mendiola began firing seven bullets into him, bullets that would mortally wound him. As the smoke cleared, the officers, still in a state of shock, their pulses pounding, their minds racing, began, as all officers do in such situations, to second guess themselves, to try to confirm that what they believed happened actually did happen as they perceived it. They had good reason to second guess themselves. Perhaps Off. Mosher thought he saw something in Scott’s hand, or more likely, the moment Scott’s arms began to move in response to frenzied, shouted conflicting commands, commands coming from three officers and two directions, he fired. He fired too soon with too little input. Officers Stark and Mendiola fired reflexively. Even if a shooting is absolutely, without question justified, shooting a man in the back, particularly if he is already face down on the ground, is a moral, public relations disaster. This would occur to them and the possible consequences, like every other image chaotically flashing through their minds, would be horrifying.

THE AFTERMATH (Circa 20 Seconds After Meeting Scott):

No doubt the three officers began to quickly ask each other what happened. Stark and Mendiola, if they had any common sense, quickly realized that Mosher’s shooting of Scott was iffy at best. It would be impossible to describe their states of mind to anyone who has not experienced a similar situation. “Horror stricken” is inadequate, but as good a description as any. As they became aware of the many bystanders who were beginning to pick themselves up off the ground or coming out from behind whatever cover they could find as the Police opened up–as they opened up–their anxiety would only have increased at the realization of how many citizens were in their direct line of fire. Only the happy discovery that they apparently, somehow miraculously avoided shooting any of them would have given even temporary relief, yet the nagging realization that they hadn’t even thought of a proper backstop before firing would weigh heavily on them as shock after shock, terrible possibility after terrible possibility flashed through their racing minds.

Despite the presence of higher ranking officers–a partial radio transcript suggests that a watch commander was there (normally at least a lieutenant or captain), and there would certainly be a variety of first line supervisors present, Mosher began issuing orders and took command of the scene. At the Inquest he testified that he did so because he was the senior officer at the scene. It is currently unknown how long this foolish state of affairs was allowed to continue, but the officers would have certainly begun to look for evidence and Off. Mosher almost immediately handcuffed Scott and would testify that as he handcuffed him, he believed him to be dead. However, Off. Mosher was still so in shock that he didn’t think to search him, and none of them thought to check his medical condition, not even bothering to try to find a pulse. Adrenaline will do that to you.

THE GUN PROBLEMS AND SOLUTIONS:

Mosher almost certainly began to frantically look for a gun on the ground, but found only, to his horror, a cell phone. He found only Scott’s cell phone because that was all that was there immediately after the shooting. There was no gun on the ground. For Off. Mosher, and Officers Stark and Mendiola, the realization that they shot a man who posed no imminent threat, who was brandishing only a cell phone, must have been the mother of all sinking feelings.

The ambulance was already in the area, staging (standing off, waiting for the officers to call–common when there is potential danger)—their records seem to indicate (time frames between agencies and information sources are still anything but synchronized) that they arrived at about the time the first shots were fired–and was able to pick up Scott and quickly leave. By the time the Officer’s frantic search was concluded and they were certain no gun was present, it was too late for an immediate solution to their nightmare. Scott, and his gun–if he actually had one; they had no way to be sure–were already on the way to the hospital. There could be no possible explanation for stopping or calling it back, even for a police department that recognized few, if any, restraints. By now, they had certainly consciously realized that they had not searched Scott, a necessity that is drummed into every officer at the most basic levels of training. This too would only contribute to their continuing shock and confusion.

Imagine fireman/medic Chris Thorpe’s surprise when he discovered Scott’s Kimber .45 ACP handgun, still holstered, and a spare magazine, as the ambulance–siren wailing and lights flashing–sped to the hospital. Thorpe’s written report would later strangely record words more or less identical to this: “weapon found to right pocket,” and “found clip to left pocket.” Thorpe turned these items over to the police officer–identity unknown–accompanying him in the ambulance.

Back at the scene of the shooting, detectives still had not arrived and would not arrive for about 45 minutes after the last shot was fired, but higher ranking officers were on the scene. Recognizing the suspicious nature of the shooting as any competent police supervisor or manager surely would, decisions had to be made and quickly. Conduct an honest investigation, even if the officers involved would likely suffer, or enter into a criminal conspiracy and coverup? Immediately relieve and suspend Mosher and the others and conduct a professional investigation or work with them to cover up mistakes?

It took no time at all to make the decision, even though plenty of time was available. Scott’s Kimber .45 which had been discovered on his body in the ambulance, would be quickly returned to the scene and stealthily positioned. It had to be that particular gun and holster; no other would do. Too many Costco employees had already seen it and might be able to identify it, and there may have been even more about whom the police did not yet know. Worse, some witnesses might be able to say that another gun was not the gun they saw Scott carrying. There was just no way to be certain.

But what about the fireman? He couldn’t be trusted to “forget” that he found a gun–the ambulance driver probably knew about it too–it was going to turn up, if not in the fireman’s official run report, certainly in around-the-ambulance-barn and around-the-emergency-room gossip, but he could probably be “convinced” to be imprecise in describing it and the situation. Salvation came with the discovery in Scott’s wallet of seven blue cards (firearm registration cards for concealed carry, required for each gun a licensee intends to possibly carry in Clark County/Las Vegas), including a blue card for a Ruger .380 LCP pistol. Second problem solved. This would become the non-specific, unspecified “weapon” and “magazine” the fireman “found” “to” Scott’s unspecified pockets.

Why this particular weapon when the Police had seven, possibly more, from which to choose? Because Scott was already carrying what would be considered a primary defensive handgun requiring a holster, he would certainly not carry another weapon of similar size–virtually no one would–particularly since his only means of concealment was a shirt. Remember that the Police understand what it means to carry concealed weapons in a hot climate. The weapon would have to fit easily into a normally sized pants pocket. In addition, a smaller gun might be more plausibly overlooked, making the Police look at least somewhat less incompetent. The Ruger fit these requirements nicely.

SEARCH PROBLEMS AND SOME DESPERATELY CLUMSY SOLUTIONS:

Panic again set in; where was the Ruger? The police quickly obtained a written permission to search Samantha Sterner’s car–the car in which she and Scott drove to the Costco, a car and its contents completely unrelated to events–but apparently seized nothing. They did not find the Ruger; it was not in the car. That would have made things so much neater and easier. One possibility remained: Scott’s home. The Ruger had to be at Scott’s home; if it wasn’t everything could fall apart.

But there was a serious problem: The Police knew that Scott’s home had nothing to do with the events at the Costco and that they had no legitimate reason or authority to search it. No judge in his right mind would issue a search warrant for a fishing expedition. The only alternative would be to commit blatant perjury on a signed affidavit in order to trick a judge into authorizing a warrant. This would leave far too many literal and figurative fingerprints.

The solution? There is in Nevada an office that can, under some circumstances, take possession of homes and their contents. The Police involved the Public Administrator’s Office (links relating to this agency are available in Update 6 as is a complete analysis of their involvement), enlisting the help of Clark County Deputy PA Steve Grodin. But by this time, Sterner learned that Scott was dead, and her cooperation ended. Grodin and the Police knew that she was the joint tenant of Scott’s home, that with Scott dead, she had sole practical and legal control of the home, but she refused them entrance.

This too was a major problem. The Public Administrator can’t take possession of a home if somewhere who lives there is alive and/or available. The clumsy, desperate solution was to ignore Sterner and pretend that no one was able to secure the home (which was perfectly secure), thus involving the PA’s office. Frantic, repeated calls were made to Kevin Scott, Erik’s younger brother who lives out of state, to secure his permission to enter despite the irrefutable fact that he had no legal standing to give such permission. Kevin, unaware of Nevada law on the topic, nonetheless refused them and some six hours after the shooting, Grodin and at least one police officer used a locksmith to enter. They searched Erik’s home, finding and taking the Ruger and other items, items that they hoped might provide a plausible cover for being there in the first place. Of course, the Ruger would not, could not, appear on police evidence forms, nor could anything else taken from the home during an obviously illegal search. Grodin solved that problem by taking, and returning to the Scott family some, but not all, of the property. The property was not logged into the Police evidence system because that would have established irrefutable evidence of their improper, illegal search and seizure.

In the meantime, detectives arrived and took over the scene. At some point, lead Detective Peter Calos simply plucked Scott’s Blackberry from the ground, eliminating any possibility of that cell phone appearing in a photograph or a diagram.

Witnesses were interviewed and their statements were subtly–perhaps not so subtly–nudged in the right directions. Witnesses not sure of what they saw were encouraged to believe that Scott had a gun and pointed it at the Police, or at the very least, nothing was done to encourage them to clarify potentially mistaken assumptions, no matter how ill conceived. Witnesses whose recollections weren’t convenient or who could not be nudged were dismissed—no statements would be taken from them–and would not be asked to testify at the Inquest. Even so, no witness would testify to seeing a gun and a cell phone on the ground, only a gun or something that might have been a gun or something that might have been in some way related to a gun.

Higher ups in agencies that would have to be involved in the case were either notified of what was expected of them, or perhaps no such notification was necessary in a city where police shootings are so common and where officer culpability is so rare as to make a mockery of probability. Everyone knows what’s happening but they don’t really want to know what’s happening, and plausible deniability is preserved (at least for higher ranking officers). Perhaps everyone simply followed what had become, over the years, informal, normal procedure for such matters. No real decisions needed to be made. The long established, off the books procedure for “handling” officer involved shootings clicked comfortably into place. Everyone knew their role and played it.

At the Inquest, Officers and others would not commit blatant perjury, but their testimony would be partial, imprecise, fuzzy on details, non-specific and would not focus on what the shooters knew, what actually happened and the aftermath, but would focus on attacking Erik Scott. This case and all potential danger would, as it always had in the past, end with the Inquest. All everyone needed to do was hang together and support the official version, without being too specific, through the Inquest and everyone could relax, just as they always had. But this time, this shooting, the Police shot the wrong man. They enraged the wrong family, a military family, a family that runs toward the sound of gunfire, not away from it. This time, the case could not, would not be buried with the victim. The Police had no reason to suspect that this bad fortune would befall them. They would soon, to their growing discomfort and amazement, discover that it did.

A WORKING THEORY OF THE CASE: SUPPORTING EVIDENCE

(1) New Shooting Information,: During his inquest testimony, Off. Mosher confirmed that he was caught off guard by Scott’s sudden appearance, the sudden appearance of a man and his girlfriend simply walking calmly out of the store. He testified that he was surprised because he was waiting for his superiors to come up with a tactical plan. This confirms our past analysis of his level of awareness and preparedness; he and Stark and Mendiola were utterly surprised and acted out of panic despite having, by police standards, a long time to plan and prepare.

Since the last update, some of the mechanics of the shooting have become clearer. It now appears that it was Off. Mosher who failed to recognize Scott as he walked past him out the front doors of the Costco. Costco Security guard Shai Lierley, who had been following Scott throughout the store, speaking to a police dispatcher by cell phone, frantically pointed Scott out to Mosher who, with Stark and Mendiola, immediately drew and pointed their weapons at Scott and began to yell conflicting commands. Scott turned 180° toward the first Officer, Mosher, who yelled at him, turning his back to the parking lot. When Mosher opened fire approximately two seconds later, his backstop was not pillars, but a parking lot full of Costco shoppers who were leaving the building at the command of the Police. In fact, many shoppers–the number may never be known with certainty–were standing within feet of the shooting, actually surrounding the Officers and Scott and Sterner, and were diving to the ground, throwing their bodies in front and on top of loved ones, and ducking for whatever cover they could find, many after the fact, so rapidly did the shooting begin and end.

What remains something of a mystery, even with the digital recreation of the shooting presented in the Inquest, is the exact positions of Stark and Mendiola. Their testimony suggests that they really had no idea who fired the first two shots or why; they reflexively fired in response to those shots, not because they truly perceived Scott as a deadly, imminent threat requiring that they fire five rounds into his back and armpit as he fell, face down, to the ground. Within a few minutes of the last shot, they certainly understood the wisdom of testifying that Scott was a deadly threat and did so at the Inquest. The possibility remains that at least some of their rounds were fired, essentially straight down into his back as they stood over him. Even the Medical Examiner, responding to the few questions from the Scott family and their attorney that were read into the record, provided an imprecise, fuzzy accounting of the rounds fired, their impact and resting places and their tracks through Scott’s body, including the shot into Scott’s armpit which remains the least documented and understood round to strike Scott. All of these issues should, by the time of the inquest nearly two months after the shooting, have been clearly determined, measured, catalogued, solidified and recreated with no room for error or argument, yet these issues, issues that could conclusively indicate guilt or innocence, malice or misfortune, remain unclear. This speaks of incompetence on the part of not only the Police but of the Medical Examiner. These individuals and their respective agencies seem willing to appear incompetent, likely because the alternative is worse, much worse.

The assertion of Metro Police Captain Patrick Neville that no civilian was ever endangered by police fire because the officers used a pillar (as in “one”) as a backstop is surprisingly clumsy and transparent. The “pillars” in the area are actually huge support structures, integral steel and concrete portions of the building that are faced by irregularly sized and embedded stone. Not only would they be completely incapable of absorbing bullets, they would be, as was surmised in past updates, incredibly efficient random ricochet generators. Considering the number of innocent citizens within feet of the paths of police bullets, any ricochet would have been virtually certain to cause injury, even death.

Why would a police captain, a member of the upper management of the agency, make a statement so obviously false and so easily proved false by nothing more than the use of the human eye? It would not be unreasonable to believe that he did so because the upper management of the agency knew exactly what had happened. They knew about and approved of the cover up. As they had for years, they participated in deflecting blame and diverting attention, expecting no backlash, no consequences for misleading the public. But ultimately they were willing to get involved in this incredible way because they believed they’d never be questioned, or they were willing to appear to be incompetent, to be thought to be liars, because the alternative was worse.

(2) the Vanishing Cell Phone: It’s not known exactly how Scott’s Blackberry came to be on the ground near his body. This too, incredibly, the Inquest failed to clearly explain or resolve, perhaps for good reason. By far the most obvious, likely explanation is that it was in Scott’s hand when he was shot. There are witness statements in support of this contention. It is likewise probable that it was this Off. Mosher saw and misinterpreted as a gun–if he saw anything at al–in Scott’s hand. It was likely this, not a gun, that some witnesses saw and believed to be a gun because everything that they heard and thought they saw would lead most people to believe that a gun must have been present, particularly if they were encouraged to make that interpretation, but there can be no doubt the Blackberry was there: The Police testified it was there.

Lead Detective Peter Calos did something incredible, something that defies proper police procedure, something that no officer investigating the scene of an officer involved shooting should ever do. He testified that he picked up the phone, which must have been before its position was recorded and measured. Whether he told crime scene technicians that it was ever there is unknown, but by removing it, he obliterated any possibility of its ever being photographed in place. It did not appear on the digital reconstruction of the scene. The Prosecution, of course, did not question one of the most questionable actions thus far known in this case. But the best–as in incompetent or corrupt–part of Calos’ explanation for what any competent detective would classify as a boneheaded rookie cop mistake is that he picked up the phone to try to identify Scott.

All available evidence suggests that this is less than accurate and forthcoming. By the time Calos and his team arrived some 45 minutes after the shooting, Samantha Sterner had been identified and questioned. She absolutely identified Scott to the Police. The alternative possibility is that the Police waited some 45 minutes before trying to discover the identity of a man they shot and killed. Even if Sterner had never existed, Erik Scott’s wallet had been found in his right front pocket by EMT personnel and handed to the Police before the ambulance left Costco, and his identify thereby discovered. The Public Administrator’s office had been enlisted to enter and search Erik Scott’s home, all the while ignoring the wishes of Sterner–his joint tenant–refusing entry. There can be no reasonable doubt that the Police knew exactly who Erik Scott was within minutes of the dying echos of the last police gunshots.

Two possibilities remain: Calos, the lead detective directing the investigation of an officer involved shooting, mindlessly made a mistake that would have caused a rookie cop making a similar mistake to suffer a lengthy suspension or be fired. Or Calos needed to remove the cell phone from the scene–and the possibility of memories of that phone from witnesses–to make way for a missing object, an object that would replace the cell phone. The Police needed to clear the way for the one, and only one, object they desperately needed to be there: Erik Scott’s Kimber .45, the same gun Sterner knew Scott was carrying, the same gun seen by Costco employees and found on his body, still holstered, in the ambulance on its way to the hospital by fireman/medic Chris Thorpe. Thus was an experienced detective apparently willing to blatantly violate crime scene protocol, to tamper with evidence, to appear to be incompetent, because the alternative was worse.

(3) The Abortive Blackberry Search: The police did, for some time, try to crack the password on Scott’s Blackberry, even asking his relatives for help, but were apparently not able to gain access to its data. Like the search of Scott’s home outlined in Update 6, this is yet another improper, unjustified search attempt by the Police, another illegal fishing expedition. If this theory of the case is correct–Scott had the cell phone in his hand before being shot–that, and its position on the pavement relative to his body were important pieces of evidence, evidence that had to be painstakingly measured, documented and photographed. But Det. Calos destroyed the usefulness of the phone as evidence of the shooting when he tampered with the scene by removing it. Under no conceivable circumstance were its contents related to the shooting; they should have been of no interest to the Police. Scott was dead. He could not be charged with any crime. They knew exactly who he was. There were no grounds to search his Blackberry though the Police clearly tried. It should not be forgotten that there was one powerful, though secondary, motive for this and every other search: The desire to find something, anything to use to smear Scott after his death in a desperate, ex post facto (Latin: “after the fact”) attempt to justify an unjustifiable shooting.

(4) The Missing Gun: There was no gun on the ground near where Scott lay because Scott did not have sufficient time to respond to multiple, conflicting commands. He did not have sufficient time to remove his inside the waistband holster and handgun before he was shot and fell, face down, to the pavement. His gun remained where it was, holstered inside the waistband of his pants, under his shirt, and Off. Mosher, in his frenzied haste to handcuff Scott, did not find it nor did any other officer. Fireman/medic Chris Thorpe did, in the ambulance, on the way to the hospital and turned it over to the officer accompanying him. There was more than sufficient time for the weapon to be returned to the scene and stealthily positioned for diagramming and photography.

But a serious problem remained: What about Chris Thorpe? Could he be relied upon to keep his mouth shut? To falsify official records, to commit multiple crimes, to participate in an ongoing criminal conspiracy? What about the ambulance driver? For whatever reason, this was obviously too large a risk. Thorpe found a gun (and a magazine which will be explored shortly), the gun the Police needed back at the scene of the shooting to make the Officer’s shooting of Scott even remotely justifiable. Without it a strong, perhaps overpowering, case could be made that three Metro officers shot and killed a man who posed no threat to them or anyone else. With it, the issue could at least be muddied and, as had so often been done in the past, things might, with time, be forgotten and buried. Thorpe found a gun and that fact couldn’t be buried. Actually, his discovery of a gun was absolutely necessary to the hastily arranged plan that followed: what if Thorpe found a second gun? Not the gun that Off. Mosher testified that Scott pointed at him–that gun had to be returned to and placed at the scene (Note: Every action described in this theory fits comfortably within known time frames). It could never be acknowledged that Thorpe found the .45 on Scott’s body. But another gun, a gun that through incredible, virtually unbelievable incompetence the Officers did not find on the man who had allegedly posed a lethal danger to them seconds earlier despite having the presence of mind and time to handcuff him could be “found.” It had to be found.

Yet again, the police were willing to appear to be incompetent, dangerously incompetent, something every officer fears and will go to great lengths to avoid. Something that every agency loathes and will take extraordinary measures to avoid even the appearance of, because the alternative was worse.

(5) The Search Of The Car: Shortly after Scott’s shooting but before Sterner knew that he was dead (he wasn’t officially pronounced dead until a few minutes after he arrived at the hospital), the Police asked for and received Sterner’s written permission to search her car which was in the Costco parking lot. Scott was never placed under arrest or suspected of committing any crime in which that car or its contents could have possibly played a part (a Dispatcher did suggest to responding officers the possibility that Scott might have been shoplifting or trespassing, but never actually said that he was, and no witness testified that he shoplifted or trespassed by refusing to leave the store), yet the Police felt the need to search Sterner’s car. It is not known whether they removed anything from the car. No official records were revealed to that effect during the Inquest, and nothing is known to be missing, though it is possible.

Why did they need to search Sterner’s car? A car that could only have been involved if struck by a Police bullet (it apparently was not)? Return to the ambulance bearing a dead or dying Erik Scott to the hospital. His Kimber .45 and a spare magazine were found and turned over to the police. Probably at about the same time, at the scene of the shooting, the Police were examining the contents of Scott’s wallet. In that freshly blood stained wallet, with his concealed carry permit, were seven “blue cards,” gun registration cards required by local law, including one so new it had not yet been laminated, a blue card for a recently purchased Ruger .380 LCP pistol.

Problem solved! The Police would still look incompetent for failing to find a gun on such a “dangerous” man, but perhaps a little less incompetent considering a small pistol like the Ruger. Thorpe could still be allowed to have found a pistol and magazine and put that fact in his report, but he’d have to be pretty fuzzy about the details. Firemen and medics, like police officers, must be exact in their reports. Details are important and particularly important when documenting an officer involved shooting, yet Thorpe, who according to spectators present in the courtroom during the Inquest appeared to be “very nervous,” failed to specifically identify the make, model and caliber of the weapon (all of which are molded or engraved into the frames or slides of modern semi automatic pistols), or to particularly identify exactly where the Ruger and its magazine were found in Scott’s clothing. On the witness stand his description was so vague that he could only offer that the gun he found fit in his hand. While the Ruger might do this somewhat more comfortably, Scott’s compact, custom .45 would also fit that description. The layman might imagine these to be important, even vital details, and they would imagine correctly.

Amazingly, when Thorpe testified, he was not shown or asked to identify the Ruger or the Kimber .45. Could this be because the Police and Prosecutor could not be sure which weapon Thorpe would identify, and because he had never seen the Ruger, would be very likely to identify the gun he did find, the Kimber .45? Both weapons had been displayed in court earlier during the week long run of the Inquest. In fact, Det. Calos later testified, to the surprise of everyone in the courtroom, apparently including the Prosecutors, that the Ruger had been “nicked” and damaged by the bullet that struck Scott in the thigh. This caused quite a stir–no such damage was apparent in photos taken of the weapon as it was displayed during the inquest, and no one present could recall seeing any obvious damage–and hasty, ill conceived assertions from the Prosecution that the guns were locked up and couldn’t easily be produced, but maybe could, possibly, if the jury reeeeallly wanted to see them… Failing to have the witness who discovered the handgun actually identify it is a rookie prosecutor mistake and could, in a real trial, lead to the disqualification of the evidence and all testimony and discoveries flowing from it. Again, those involved with the case were apparently willing to appear to be incompetent, because the alternative was worse.

(6) The Search Of The Scott Home: Imagine the disappointment of the officers searching Sterner’s car when the Ruger was nowhere to be found. But all was not lost; the Ruger must be at Scott’s home. Why would the Police enlist the aid of an outside agency, enlarging the ever growing ranks of those who had direct knowledge of an ever growing conspiracy, people who could be hard, perhaps impossible to control? Why would they break into a home, search it and seize property knowing that the sole living resident of that home refused them entry and that their entry, search and seizure could not possibly be justified? Because the alternative was worse. The Ruger had to be found and taken into Police custody. If not, the entire justification for the shooting and everything that followed would fall apart. But wouldn’t that require the police to falsify evidence and other reports regarding when and where the Ruger was found and taken into evidence, and wouldn’t that be a serious crime in and of itself? Of course, but the alternative was worse.

If it is assumed that this theory is correct, wouldn’t it have been easier and quicker for the Police to produce a throw down gun, a gun untraceable to them, of the kind sometimes used by corrupt officers to cover a bad shoot? Impossible in this case. The Police had ample, blood stained evidence in their hands that Scott scrupulously obeyed Nevada firearms laws. Not only that, his multiple blue cards indicated that he owned only quality, expensive firearms. A cheap throw down would be too out of place, too hard to explain in a case already filling to the brim with hard to explain happenstances.

The authorities had yet another need. They had to keep Sterner out of her home until they could search it to ensure that the Ruger was there. They could not allow her to be present for the search as she might see what they were up to. When they left, their prize in hand, the locksmith they hired to enter the home changed the locks and the keys were not turned over to Sterner, but to Kevin Scott around mid-day of the following day, after he arrived from out of state. They locked Sterner out of the home Scott and she shared on the day she was forced, at point blank range, to watch the Police shoot and kill Scott. The fiction that she did not exist, that she was not in control of her own home, had to be maintained. According to those who knew Scott best, including Sterner who lived with him, he never carried a second firearm, not the Ruger, not any other weapon. Is it therefore impossible that Scott could have been carrying the Ruger that day? No, but human beings are creatures of habit and discipline, particularly those who have been military officers, and there are other reasons that suggest this is quite unlikely. Scott always carried his wallet in his right front pants pocket. That wallet and its contents were stained with his blood, indicating clearly that it was in his right front pants pocket. Therefore, Det. Calos’ testimony that the Ruger was damaged by the bullet that struck Scott’s thigh is not likely to be factually based as the Ruger could only have been in his right rear pants pocket.

Those searching the home spent little time there. It was simply not necessary. The Ruger and its spare magazine were quickly found, but no Police document would ever record it as being found there and it would not surface again until the Inquest. Other items were, however, taken from the home: Several expensive watches, several checkbooks, A .40 S&W Sig handgun, a paintball gun and a ceremonial saber and sheath–sealed in a wall mounted display case(!)–given to Scott by his family upon his graduation from West Point. Those who have read Update 6 may recall that Deputy PA Grodin left a message for Kevin Scott which indicated that he intended to search Erik’s home for “weapons and valuables.” The items taken were cover, cover for the illegal but absolutely necessary seizure of the Ruger. All the “weapons” and a few paltry valuables that could be quickly and easily gathered up and taken to provide a transparent justification for a search that could not be justified were taken and kept by Grodin. No doubt the citizens of Las Vegas are resting easier these days upon discovering the efforts of their police to curb the paintball and wall decoration ceremonial saber scourges.

These items were soon returned to the Scott family, but not without some difficulty. Because he does not live in Nevada, the Sig .40 had to be sent to Erik’s father, Bill Scott, by means of FFL dealers. Scott was contacted within a week of the seizure by the Las Vegas dealer enlisted by Grodin and told that it was highly unusual for the PA’s office to release such things so quickly as the process usually took months. Perhaps Mr. Grodin had a fit of conscience? Or perhaps he merely wanted to get rid of incriminating evidence as quickly as possible. When the Sig finally arrived, the slide was jammed open, intentional damage requiring repair, more money imposed on the Scott family by Las Vegas authorities. All of these items could have been returned directly to Sterner, incurring no expense for the Scott family, but Sterner had to remain–to the authorities–a non-person who had no interest in the home or its contents that she shared with Scott.

(7) The Curious Case Of The Missing Magazine: At the Inquest, both handguns were displayed, but only one spare magazine: The spare magazine of the Ruger pistol. The spare .45 magazine Scott always carried in his left front pants pocket was nowhere to be found. Yet, Thorpe did find that .45 magazine and turned it, and the .45, over to the officer in the ambulance. Scott always carried his wallet in his right front pants pocket and was doing just that on the day he was shot. This was confirmed by Scott’s blood on that wallet, blood from the thigh wound inflicted by Mosher, and ironically, the blue card for the Ruger. Scott was right handed, so he carried his handgun in an inside the waistband holster behind his right hip so that the grip of the weapon would lay flat against his back to avoid imprinting through his clothing. He carried his wallet in his right front pocket–there can be no doubt of this–and his spare .45 magazine in his left front pocket where he could quickly reach it with his left hand. If he had worn these pants several times before July 10, 2010, the material would be worn in such a way as to confirm what he carried and where.

This makes Det. Calos’ testimony of the Ruger pistol damaged by the bullet that struck Scott in the thigh strange indeed. Such damage is unlikely at best because Scott would have had to carry the Ruger in his right rear pocket. This too is unlikely. Few people find sitting on a handgun comfortable, and the Ruger would have been directly behind and beneath the holstered .45, making a thick, doubly uncomfortable, difficult to conceal package. In order for the bullet to have struck the Ruger in Scott’s right rear pocket, it, or at least a substantial fragment, must have entirely pierced his thigh. As Mosher was standing near Scott when he fired, the bullet must have been traveling at a sharp downward angle. Even if the bullet struck Scott in the very top of the thigh, and even if its path was exactly parallel to the ground, a pocketed Ruger would have been above the path of the bullet. If it was traveling on a downward path, as it surely must have been, the bullet would have exited Scott’s leg substantially below his right rear pocket unless it was deflected upward by Scott’s femur, and not only would the probability of such a deflection be vanishingly small, there is apparently no such testimony or evidence. Det. Calos’ testimony was apparently designed to reinforce the story that Scott was carrying a second gun, the Ruger, in his right front pocket. Remember Thorpe’s strangely worded, obscure report regarding finding a weapon and magazine and their locations. Or perhaps Calos was merely improvising on the stand. In any case, if the Ruger is ever seen again, it will almost certainly have acquired damage that might have been caused by a bullet. Either that, or Det. Calos will have to retract his testimony. Yet again, is this incompetence, or obfuscation necessary to avoid a worse alternative?

What happened to the .45 magazine? According to those who knew Scott intimately, including Sterner who lived with him, Scott never carried the Ruger. He kept it, and its spare magazine, in an easily accessible place as a home defense gun. When the police took that gun and magazine from Scott’s home, they had another problem. A spare .45 magazine would only confuse matters. No one at Costco said anything about it because it was in Scott’s left front pocket, invisible. Having it wouldn’t make things easier for the Police. In fact, it would certainly raise questions such as why anyone would carry two separate magazines for two very different weapons in the same pocket, making it very difficult to retrieve the correct magazine under pressure. Scott was certainly more than tactically schooled and aware enough to understand the foolishness of this. So the Ruger magazine would surface at the Inquest and the .45 magazine would not. Not all of the documents the Police have relating to this case have been produced, but the location of that magazine remains unknown. It would not be unreasonable to believe that it has been “lost” or destroyed.

TRAFFIC TICKETS AND POLICE SCRUTINY:

A particularly disturbing pattern has recently emerged. Sterner has, in the last two weeks (circa late October, 2010), received two traffic tickets from Metro Police, and several friends and supporters of Sterner and the Scott family have been followed, several for great distances, distances that would eliminate the possibility that such following was mere coincidence, by the Police. In each case, there was a common factor: Each vehicle displayed the distinctive red, white and blue remembrance ribbon distributed in memory of Erik Scott to the rear.

While it is possible that Ms. Sterner has merely had an unusual run of bad luck in her driving habits, this too, like so much about this case, is unusual and questionable. Most people can drive for many years, even decades, without a single citation. But the unusual has become the commonplace in this case. What is most disturbing about this Police behavior is that it is counter to common sense and to professional Police practice, again, as so many of their actions in this case seem to have been.

When a civil or criminal trial is pending, professional, honest police agencies will go out of their way to avoid even the appearance of undue interest, witness tampering or harassment. Competent Officers know, without being told, to avoid people who might be involved in the case, even if that means they might get to run the occasional stop sign or drive ten miles an hour over the speed limit. Officers who fail to listen will find themselves being smartly dressed down by more experienced officers or failing that, by their line supervisors. It rarely has to go higher than that level. This does not mean that officers will ignore gross violations of the law, but they’ll call officers completely unrelated to the case at hand should police intervention be unavoidable.

The behavior of the Metro Police suggests that they believe themselves to be unaccountable to the public. This is always a dangerous, destructive state of affairs. It causes Officers to believe themselves to be above the law, even a law unto themselves. If it goes on long enough, it allows the bad to outnumber, suppress and overpower the good among them. It leads to a police force that is distinguishable from criminals only in that the police wear identifiable uniforms. It breaks the bonds of trust between citizens and their police. It corrupts the corruptible and unfairly taints honest officers. It is the antithesis of, and dangerous to, democracy. Late Update:As of 10-23-10, Sterner has received an additional citation and now has been issued three in a bit over two weeks.

ADDITIONAL ISSUES:

There was a Police helicopter on the scene, including throughout the shooting. Police helicopters carry video cameras. Did the crew record the shooting? Even if they did not, competent police procedure requires that the tape or other recording media be preserved in evidence and made available for examination in any legal proceeding. The results will, no doubt, be interesting.

Much has been made by some of the fact that Samantha Sterner did not testify at the Inquest despite being subpoenaed. In fact, the subpoena was not served on Sterner, but was merely given to her brother. Under the law, she was never actually served. Her attorney, knowing full well the nature and predetermined outcome of the Inquest, advised her not to attend and not to testify. Considering the fact that the Prosecution savaged some of its own witnesses, this was wise advice.

Costco Security Employee Shai Lierley is reportedly hoping to become a member of the Metro Police. After his testimony at the Inquest, he sat and hung out with the Police in the Inquest for at least two additional days. It will be interesting to see if his steadfast devotion to the official story is rewarded.

A number of Costco witnesses, and Officer Mosher, have stated that Scott referred to himself as a “Green Beret,” and Mosher testified that he knew that Scott was skilled with weapons because he was a Green Beret. This is, at best, implausible for several reasons. No one in the Army uses the term “Green Beret,” saying instead “SF” or Special Forces. They really are quiet professionals. It is part of military culture never to claim membership in units in which you did not serve, never to claim to have been awarded medals you did not earn, and never to claim rank you did not earn. Those pitiful individuals who do are justly reviled by honorable soldiers. Erik Scott’s service was entirely honorable. He was a West Point graduate, an officer of armor, and as such, like all his fellows, would have thought that honor, that assignment, enough. It would not occur to an honorable soldier to claim what they had not earned, and Scott was an honorable soldier. And of course, Mosher could not have known anything about Scott’s level of tactical accomplishment before meeting him, or in the two seconds before he shot him. His testimony had no bearing on his justification for the shooting as much as he and the Metro Police would like it to be so.

In Update 3, I wrote of Costco Cashier Arlene Houghton who testified that Scott actually fell on her checkout conveyor belt. However, the real story is quite different. Houghton actually testified that a man, who appeared to be drunk, fell on her conveyor belt some two hours before the shooting. Scott and Sterner were not in the store until much later. In fact, her “recognition” of Scott was only possible because she heard a description of the man who had been shot that day. She never saw a photograph of Scott until the day of the Inquest and said that he was better looking in pictures than in person. Houghton only thought that Scott was the man who fell on her conveyor belt, but Scott was not in the store when it happened. This is what passes for the truth when there is no opportunity for adversarial questioning in court. Ms. Houghton, no doubt, testified as honestly as she knew how, but she is, quite obviously, mistaken in her identification of Erik Scott. The larger problem is that the Prosecution must have known that Houghton was mistaken and that her testimony would be, at best, misleading, but they also knew that it would not be challenged. This does not speak well of their fundamental human decency or of their professional integrity.

Some readers have inquired about Police testimony suggesting that Scott was committing a crime when he was shot. My reading of the relevant Nevada Revised Statutes is that there is no particular statute touching on the carrying of a backup weapon. That which is not prohibited is allowed. It’s my impression that the Police’s primary contention was that because Scott had drugs in his system, he was violating the law by carrying a gun. Again, my reading of the relevant statute is that it is illegal to carry a concealed weapon while drunk, or if addicted to drugs. The testimony of three physicians who treated Scott over several years was anything but clear on this point. Several expressed varying concerns over his use of drugs they prescribed for legitimate medical reasons, but none could have possibly testified that Scott was, on July 10, 2010, without doubt addicted to any given controlled substance. Again, the Police appear to be grasping at ex post facto straws to smear Scott.

UPDATE 7 FINAL THOUGHTS:

This has been a lengthy, but I hope informative, post. I have tried to construct a plausible working theory based on the available evidence. In this, because of my experience, I am probably better able than most to make accurate inferences to fill gaps in available evidence. This is the nature of experience. But I make that claim with the ever-present understanding that I do not have all of the facts. I could be unintentionally mistaken in matters small or large, and when more of the facts become available, I will make appropriate corrections. To that end, I invite any Metro Officer or others having direct knowledge of this case to contact my co-blogger Bob Owens or me. I know that if my theory is correct, there are honest officers who want to see justice done, in their daily duties and in this. Likewise, I rely on the sharp wits and keen eyes of our readers to provide insights that I, like any single writer, could easily miss. One of the great strengths of the blogosphere is the fact that there are thousands of experienced, capable people who can rapidly bring enormous experience and knowledge to bear on any issue, as Dan Rather found out to his dismay in the Memogate affair.

Currently servicing police officers tend to be a bit dismissive of ex-police officers. Hardly a week goes by that someone doesn’t tell an officer that they too used to be cops. The reality of police work and its fast paced, immediate nature virtually dictates that if you are not actually working with a given group of cops on a daily basis, you really don’t exist unless they have to deal with you. Their focus must, of necessity, be elsewhere.

That said, I hope that I’ve provided a service, and will continue to provide a service for those honest officers who work hard to attain and maintain reputations for unblemished integrity. If they have been reading my updates, I suspect that those officers know exactly what I’m saying and why I have to say it. Given the same facts, they’d come to the same conclusions and develop the same theory. As I said in a past update, we honor no one when we allow corruption in the force, and when we don’t resist and root it out, we dishonor the honorable officers who know that they work for the people they truly protect and serve.

I hope that my theory is wrong. I pray that it’s wrong. Sadly, I seriously doubt that it’s wrong. As with all conspiracies, sunlight remains the best disinfectant.